PEOPLE v. ANDREWS

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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Joseph Michael ANDREWS, Defendant and Appellant.

No. B095067.

Decided: February 05, 1997

Barbara Michel, Berkeley, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Kenneth C. Byrne and Pamela C. Hamanaka, Supervising Deputy Attorneys General, Kristifor Jorstad and Carol Jorstad, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant, Joseph Michael Andrews, was charged with and convicted by jury of two counts of assault with a deadly weapon or instrument or by force likely to produce great bodily injury (Pen.Code, § 245, subd. (a)(1),1 counts 1 and 2), and one count of resisting arrest (section 148, subd. (a), count 3).   In a bifurcated proceeding, the court found appellant had been convicted of felonies on three prior occasions, alleged as follows:  August 24, 1973, kidnapping (§ 207) and possession of marijuana (Health & Saf.Code, § 11357) in Case No. A516926;  June 24, 1980, attempted burglary (§ 664/459) in Case No. A525684;  and September 24, 1984, assault with intent to commit rape (§ 220) and residential burglary (§ 459) in Case No. A531217.   The convictions for kidnapping, assault with intent to commit rape, and residential burglary qualify as “strikes” pursuant to sections 667, subdivision (d)(1) (Three Strikes Law) and 1170.12, subdivision (b)(1) (the Three Strikes Initiative), which incorporate sections 667.5, subdivision (c)(14), kidnapping, 1192.7, subdivision (c)(10), assault with intent to commit rape, and 1192.7, subdivision (c)(18), residential burglary.2

After denying a motion to strike the priors, the court sentenced appellant “to statutory sentence of 25 years to life as to counts 1 and 2, to run concurrent with each other.   Defendant is sentenced to 1 year in jail as to count 3, which may be served in any institution.   Sentence re count 3 stayed.”   The court also imposed a restitution fine of $200 and gave appellant credit for a total of 272 days in custody and “goodtime/worktime.”

On appeal, counsel for appellant initially filed a brief raising no issues.   (People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071.)

Upon our review of the file we issued a Government Code section 68081 letter asking for further briefing as follows:  “It appears that appellant was convicted of two separate felonies with findings of true on three prior serious felonies qualifying appellant for sentencing pursuant to the Three Strikes Law. The court sentenced appellant on counts 1 and 2 to 25 years to life on each, to run concurrently.   The court would like further briefing on the issue of whether this was an unlawful sentence by not running the terms consecutive.  (People v. Ingram (1995) 40 Cal.App.4th 1397, 48 Cal.Rptr.2d 256;  People v. Martin (1995) 32 Cal.App.4th 656, 38 Cal.Rptr.2d 776;  People v. Carter (1995) 41 Cal.App.4th 683, 48 Cal.Rptr.2d 726.)”

Counsel has submitted a supplemental opening brief on behalf of appellant.   The brief argues that the concurrent sentence was appropriate;  we should remand the matter to the trial court to exercise discretion pursuant to section 17, subdivision (b) to reduce count 2 to a misdemeanor and to consider striking one or more of the priors pursuant to section 1385 (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628);  the sentence is cruel and unusual;  and the trial court erred in instructing upon the subject of transferred intent.

We conclude that the trial court did not err in sentencing concurrently on counts 1 and 2;  that the court exercised its discretion in denying appellant's motion to strike the priors pursuant to section 1385;  that there is no reasonable basis to believe that the court would exercise its discretion to reduce count 2 to a misdemeanor;  and that instruction by the court on transferred intent was not prejudicial to appellant.   Based on these conclusions, we affirm the judgment.

FACTS

Because appellant does not challenge the sufficiency of the evidence for conviction we restrict our statement of facts to those necessary to determine the issues raised.   We also view the facts in the light most favorable to the respondent.  (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103.)

At approximately 5 p.m.   on January 20, 1995, appellant entered a sports bar known as “Characters” in Pomona, carrying two transparent bags, one with a quart bottle of liquor in it.   He went through the bar to the restroom.   Approximately ten minutes later appellant came out of the restroom, threw ten cents on the counter and asked the bartender, Debi Elias, for a paper cup.   She advised appellant that she had no paper cups and no take out orders were allowed.   Appellant returned to the bathroom.

Because customers were not allowed to bring liquor into the establishment, Ms. Elias requested that another customer, Scott Morrison, go into the restroom and advise appellant of the rule.   Morrison did so and he and appellant came out of the bathroom.   Appellant questioned why he had to leave the establishment.   Words were exchanged.   Ultimately, Ms. Elias and Morrison escorted appellant and his belongings out the front door.   On the way out appellant became belligerent, kicking tables and chairs and suggesting that Ms. Elias “just call the goddamn cops.”   Outside the bar appellant yelled obscenities.   Ms. Elias decided she should call the police and she dialed 911.   While the dispatcher was on the line appellant reentered the bar.   Ms. Elias put the receiver down and walked around the bar to join Morrison so “Scott [would not] be there by himself” in confronting appellant.   Appellant had one hand on a sack and his other hand on the quart bottle of liquor, holding it by the neck.   Appellant approached Ms. Elias and Morrison in an aggressive manner and stated “Come on, baby boy.”   Ms. Elias was standing next to Morrison, “side by side.”   Appellant drew back the arm with the bottle and lunged toward Ms. Elias and Morrison swinging his arm forward.   Ms. Elias ducked and Morrison was struck, first on the elbow and then the forehead.   The bottle didn't break but it knocked Morrison down.   Ms. Elias was able to pull appellant's shirt over his head and other patrons pinned him to the floor.

Shortly thereafter the police arrived and took appellant into custody.   During questioning, appellant made an unsuccessful attempt to escape.

DISCUSSION

1. Transferred Intent

The court instructed the jury with CALJIC No. 9.10 as follows:  “Where one attempts to assault a certain person, but by mistake or inadvertence assaults a different person, the crime, if any, so committed is the same as though the person originally intended to be assaulted had been assaulted.”

Appellant “attacks the conviction of assault on Debi Elias on the ground that it was based on a faulty legal concept of transferred intent.”   He argues that the assault was actually launched against Morrison and, because no injury occurred to Elias, the doctrine of transferred intent is inapplicable.

 Respondent basically concedes that transferred intent was not involved in this case because the People were proceeding against appellant on the theory that he assaulted both victims.   Respondent argues that while the instruction was surplusage, it was not prejudicial.   We agree.

The prosecutor made the following argument in connection with the assault charges:  “There is also a jury instruction, an attempt to assault one but you assault another one.   When one attempts to assault a certain person [but] by mistake or inadvertence assaults a different person, the crime here, assault with a deadly weapon, if any are [sic] so committed, is the same as if the person originally intended to be assaulted had been assaulted.   So if you feel [appellant] was swinging at Miss Elias and missed and he struck Mr. Morrison, then that's still assault with a deadly weapon, according to the Law. [ 3 ] [¶] However, it's the People's position that [appellant] was swinging at both Miss Elias and Mr. Morrison.   That's why he's charged with two counts of assault with a deadly weapon, or in the alternative, with force likely to produce great bodily injury or harm.   Thus, you have count 1 on Mr. Morrison, and you have count 2 on Miss Elias.”  (Italics added.)

The evidence supports a conviction of assault on both victims.   Ms. Elias testified that she was standing next to Morrison when appellant swung the bottle, she ducked, the bottle missed her and hit Morrison.   Both were in the zone of danger.   Because assault is a general intent crime the action of swinging the bottle at both victims was sufficient to establish two assaults.   (People v. Tran (1996) 47 Cal.App.4th 253, 262, 54 Cal.Rptr.2d 650.)   We conclude that no prejudice could have resulted from the fact that the court instructed the jury on transferred intent.  (People v. Hunter (1989) 49 Cal.3d 957, 978-979, 264 Cal.Rptr. 367, 782 P.2d 608.)

2. Concurrent or Consecutive Sentences

 The evidence clearly establishes that the two assault convictions arose out of the same set of operative facts which occurred on the same occasion.   (People v. Martin, supra, 32 Cal.App.4th at p. 664, 38 Cal.Rptr.2d 776.)

Section 667, subdivision (c), as pertinent, states:  “(c) Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d), the court shall adhere to each of the following:  [¶] ․ [¶] (6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to subdivision (e).  [¶] (7) If there is a current conviction for more than one serious or violent felony as described in paragraph (6), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner provided by law.”  (Italics added.)

There are two distinctions between these subdivisions.   Under subdivision (c)(7) consecutive sentences are mandatory if the new felonies are serious or violent felonies and they may have been sentenced consecutively, notwithstanding whether they arose out of the same set of operative facts or occurred on the same occasion.   Under subdivision (c)(6), any new felonies qualify for consecutive treatment but only when the felonies arise out of a different set of operative facts and occur on different occasions.   Therefore, we must decide whether both felonies in this case are serious or violent felonies.

 Serious or violent felonies are those defined in section 667, subdivision (d)(1):  “Notwithstanding any other law and for the purposes of subdivisions (b) to (i), inclusive, a prior conviction of a felony shall be defined as:  [¶] (1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state.”   Both convictions in this case are for assault with a deadly weapon or instrument or by force likely to produce great bodily injury, pursuant to section 245, subdivision (a)(1).   No such felony is listed within section 667.5 as a violent felony.   However, section 1192.7, subdivision (c)(23) lists “any felony in which the defendant personally used a dangerous or deadly weapon.”   If the jury verdicts had been limited to the use of a deadly weapon, or there had been a separate affirmative finding by the jury on that issue, consecutive sentencing would have been mandatory.   However, because the charging information and the verdict both read in the disjunctive, it is possible that the jury focused solely on that portion of the charge relating to “force likely to produce great bodily injury,” which is not a crime that qualifies for three strikes treatment.   Without a specific jury finding, we cannot infer that the jury convicted on the basis which would enhance the sentence and we must give the defendant the benefit of the doubt.  (People v. Johnson (1986) 188 Cal.App.3d 182, 185-189, 232 Cal.Rptr. 202.)

Respondent argues that the provisions of section 667, subdivision (e)(2)(B) mandate consecutive sentences of 25 years to life.   Under the circumstances of this case we disagree.   Subdivision (e)(2)(B) refers to subdivision (e)(2)(A) which begins as follows:  “If a defendant has two or more prior felony convictions as defined in subdivision (d).  ․” This brings us full circle to the definition of a serious felony as defined in section 1192.7, subdivision (c)(23), as discussed in the preceding paragraph.   Because disjunctive language was used in the verdict form, we must give the benefit of the doubt to appellant.

 We conclude that consecutive sentences were not mandated under the facts presented.   However, because two victims were involved, the court did have discretion to sentence consecutively.  (Neal v. State of California (1960) 55 Cal.2d 11, 20-21, 9 Cal.Rptr. 607, 357 P.2d 839.)   The court chose not to, and respondent has not presented to us an argument why a concurrent sentence was an abuse of discretion.   We see no facts which establish an abuse of discretion, therefore, the concurrent sentence must be affirmed.

3.-4.**

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   All further statutory references are to the Penal Code unless otherwise noted.

2.   Statutory references will be made the Three Strikes Law rather than the Initiative.   While the subdivisions differ in numbering, the language we review is identical.

3.   Assuming transferred intent is a proper theory for an assault crime, this would have been a proper use of the doctrine of transferred intent.  (People v. Williams (1980) 102 Cal.App.3d 1018, 1028, 162 Cal.Rptr. 748.)   However, see People v. Lee (1994) 28 Cal.App.4th 1724, 1736-1738, 34 Cal.Rptr.2d 723, on the issue of transferred intent in an assault situation.

FOOTNOTE.   See footnote *, ante.

HASTINGS, Associate Justice.

CHARLES S. VOGEL, P.J., and BARON, J., concur.

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